South Sudan's Constitutional Bait-and-Switch

JURIST Guest Columnist Kevin Cope of Georgetown University Law Center argues that the crisis in South Sudan suggests that the international community might consider refocusing more of its attention on the role of constitutional structure ...

Experts disagree about the biggest source of the current crisis in South Sudan. They cite longstanding ethnic divides, misdirected foreign intervention, tension among factions within the army and personal animosity between President Salva Kiir and former-Vice President Riek Machar. Those are surely the most important and direct factors. But another, rule-of-law-based cause may be worth adding to the conversation: the recent constitutional process that, with a deft bait-and-switch from the 2005 interim constitution, concentrated largely unchecked power in the South Sudanese presidency.

It's tempting to write off as naive formalism the notion that constitutional law can "matter," especially in a place without much law. South Sudan touts one of the world's worst human rights records, a bottom fifth-percentile governance score for rule of law, and a "parent" (Sudan) with the world's most "sham" constitution. Skepticism about law's impact in South Sudan is understandable. But that doesn't mean we should abandon hope for constitutional law altogether. As some empirical research shows [PDF], constitutions can matter, even in fledgling democracies like South Sudan, in part because leaders can abuse them to amass power, building strong, highly centralized governments. Understanding how this happens helps us unpack the current crisis in South Sudan.

Constitutional Design and Divided Societies

Constitutional theorists have long endorsed a divided government as a guard against autocracy. In Federalist No. 51, James Madison argued that without the necessary structural institutions, bills of rights were meaningless "parchment barriers." On the other hand, giving those within each branch the "means and personal motives to resist encroachments of the others," he wrote, can prevent concentration of too much power in any one branch. "Ambition," Madison said, "must be made to counteract ambition."

Over two hundred years later, comparative political scientists and legal scholars have developed those ideas and applied them to culturally divided societies. As Mark Fathi Massoud argues about modern rule-of-law initiatives in Sudan, legal politics that emphasize changes to substantive law, but which "reinforce the authority and power of [authoritarian] legal institutions," are more likely to sustain authoritarianism than to bring about democratic reform. Conversely, robust vertical and horizontal separation of powers, by dispersing power among actors with competing interests, makes it harder for any single actor to gain hegemony.

In South Sudan and other weak states, elite power and personal ambition—more than established legal norms—are unusually important in driving peace or violent upheaval. That reality, together with South Sudan's divided ethnic composition, make achieving stalemate by pitting "ambition against ambition," critical in places like South Sudan. There, armed factions have engaged in a battle for the center of power. One key to fostering equilibrium is for constitutional designers to decrease the value of, and therefore the incentive to fight for, that center of power.

South Sudan's recent constitutional process, which converted the 2005 subnational constitution into the current 2011 transitional constitution [PDF], failed to accomplish that goal. As I argued last year in the Virginia Journal of International Law, the 2005 and 2011 constitution-writing processes were, in a sense, a "bait-and-switch." The 2005 process that followed the civil-war-ending Comprehensive Peace Agreement between Sudan's Khartoum government and Southern forces produced a relatively decentralized sub-national government. It included a federal structure with some meaningful checks on the central executive.

The 2011 process did away with much of that: many of the 2011 "technical" revision committee's changes consolidated power in the central government or executive and expanded the power of the national government generally. In the process, it gave President Kiir powers more commonly associated with autocracies than democracies.

The Bait-and-Switch

How did this happen? First, it seems that even before the region of Southern Sudan became the country of South Sudan in 2011, its leaders preferred a strong, centralized Southern Sudanese government. In 2005 the South was also interested in maximizing its autonomy with Sudan, which required decentralization at the Sudanese national level. Effectively, that meant that the South had to give its states and localities the same rights it was demanding from the government of the Sudan. Agreeing to this decentralized structure made the South's case for semi-autonomy far more credible.

That all changed after the July 2011 independence referendum. Following the vote to secede from Sudan, Southern leaders lost their political competition, and with it, the incentive to maintain decentralization. The ongoing security crisis may have also contributed. The leaders of Kiir's Sudan People's Liberation Movement (SPLM) felt threatened by militias—many led by disgruntled SPLM rivals—and believed the best way to manage these threats was the flexibility of unrestrained central executive authority. The constitutional drafting committee (dominated by President Kiir's own party) seized the opportunity to restructure the document into the centralized, strong executive model it wanted all along.

Among other things, that model erodes legislative and judicial checks on the executive. Under the current constitution, the president arguably can now unilaterally dismiss federal justices for "incompetence." The president has unchecked power to dissolve the national legislature pursuant to a "state of emergency" provision, which he can invoke upon finding an "economic" "threat" to "any part" of the country. (It appears the legislature can override the president's declared state of emergency, but presumably not if it's been dissolved). The 2011 changes also rolled back federalism, moving power from the states to the national government. They empowered the president to dissolve state councils and dismiss state governors. They eliminated state-level courts altogether. The changes also created structural threats to individual rights guarantees. The 2011 constitution actually contains robust rights provisions, sometimes implausibly so (e.g., a universal right to free health care). But under the state of emergency provision, the president can suspend many of those rights, and take "any such measures as deemed necessary."

Not all of South Sudan's leaders supported the changes. Some minority members of the Legislative Assembly suggested alternative options, including meaningful checks on presidential power like those in South Africa's widely emulated constitution. But allies of President Kiir defended the moves, arguing that Kiir would never abuse the powers.

That promise was put to the test this past summer. Amid a series of sweeping changes to his military leadership, Kiir's popularity had slowly been dwindling. In July, Kiir began putting his robust executive powers to use. In one day, Kiir fired Machar and the entire cabinet, blaming their alleged insubordination. Machar later declared his intention to challenge Kiir in the next election, saying that South Sudan cannot tolerate "one man's rule," and calling Kiir's actions a "step towards dictatorship." In November, Kiir dissolved all of his party's high-level institutions, including the National Liberation Council, the National Convention, and the Political Bureau.

In December, fighting broke out in the presidential guard between factions of Kiir's Dinka tribe and Machar's Nuer tribe. Citing an unsuccessful coup attempt by political rivals (though Machar denied involvement), Kiir had eleven political opponents imprisoned. He appeared on national television in army regalia and vowed justice for those responsible. Throughout the rest of December and into February, the fighting escalated, spreading through other regions. In late December, recent mass graves were found near Bentiu and Juba. In January, United Nations Office for the Coordination of Humanitarian Affairs reported that over 400,000 civilians had been displaced and that nearly 75,000 refugees had fled the country. The International Crisis Group has estimated the death toll, including both military and civilian, at 10,000 people.

The 2011 Constitution and the Present Crisis

It's impossible to predict with certainty whether a more divided structure might have averted the conflict, but theory and history suggest a relationship. Both horizontal and vertical diffusion of power can mitigate upheaval in different ways.

Vertical diffusion, commonly embodied in a federal system, allows minority groups to have a greater say in governance, thereby both serving those groups' substantive interests and helping to quell frustration about political exclusion. In South Sudan, the SPLM did the opposite during the 2011 constitutional revision process. It concentrated power where the party is strongest: around the capital. The move disempowered minorities and raised the stakes of securing power in the central government.

Power can also be separated by, for instance, vesting relatively more authority in a branch and dividing it among its members. Political scientists have recognized that in divided societies like South Sudan's, a proportional representation parliamentary system virtually ensures minority representation. Because power is shared among different groups, it does a better job of limiting the appeal of the "center" and discouraging political opponents from resorting to violence to obtain it.

Horizontal separation can also diffuse tensions among political rivals. The impression of too much power is, of course, threatening to those who have less. Machar foreshadowed his alleged coup by warning that Kiir was taking "step[s] towards dictatorship." Had there been more effective constraints on presidential power in the other branches or state governments, the threat of dictatorship might have been less threatening to the Vice President. With a stronger sense of political efficacy, the breaking point for Machar and other opponents of Kiir might have come a little later, or not at all.

Both foreign interventions in fledgling democracies and international human rights institutions tend to focus more on individual human rights than on elements of government structure. That phenomenon may reflect a perception of bigger constitutional payoffs, or the greater public appeal of rights compared with structure. That approach probably has many advantages. But as the South Sudan experience suggests, it may be worth refocusing at least some of that attention on the role of constitutional structure.

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